HKSAR v. Tam Kin Wai

HCCC 381/2018

[2019] HKCFI 729

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 381 OF 2018

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D E C I S I O N

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The Application

1.On 28 February 2019, I sentenced the Defendant to 5 years’ imprisonment for one count of trafficking in a dangerous drug to which he had pleaded guilty.  Afterwards, the prosecution applied for the disposal of exhibits which included a forfeiture application made under section 56(1) of the Dangerous Drugs Ordinance, Cap 134 (“the Ordinance”) in respect of cash totaling HK$35,940.1 (items P31 to P35) found as a result of a search conducted on the taxi driven by the Defendant at the material time.  

2.The Defendant opposed the application but Mr Boyton for the Defendant made no submission, correctly in my view, that a prima facie case had not been made out to establish the necessary link between the offence and the money.  

3.Given the circumstances under which the money was found; the amount of cash involved; and the drugs seized, one could not possibly dispute that a prima facie case was established and I so ruled. 

4.The Defendant then gave evidence in the witness box.  At the close of the evidence, I reserved my decision, saying that it would be given in writing which I now do.

The Provisions and the Applicable Principles

5.Section 56(1) of the Ordinance reads,

“(1) A court may (whether or not any person has been convicted of such offence) order to be forfeited to the Government -

(a) any money or thing (other than premises, a ship exceeding 250 gross tons, an aircraft or a train) which has been used in the commission of or in connection with;

(b) any money or other property received or possessed by any person as the result or product of,

an offence under this Ordinance or a drug trafficking offence within the meaning of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405).”

6.The relevant legal principles governing forfeiture applications are those laid down by the Court of Final Appeal in Wong Hon Sun v HKSAR (2009) 12 HKCFAR 877 and the Court of Appeal in HKSAR v Ngoma Juma Shabani [2015] 5 HKLRD 57.  

7.In short, the party making the forfeiture application bears the burden of establishing, prima facie, that the seized article is liable to forfeiture, that is, whether there is a prima facie connection between the property and the commission of an offence under the relevant ordinance.  Once this is done, the onus will then be shifted to the party claiming the property back to satisfy the court on the balance of probabilities that the court’s discretion should be exercised to order the return of the property to him.  

Prima Facie Case for Forfeiture in the Present Case

8.As outlined above, I found that, based on the Summary of Facts and the materials then adduced before me, a prima facie case had been established by the prosecution to seek forfeiture of the cash. 

The Defendant’s Evidence

9.The Defendant said that he had been a taxi driver for 10 odd years and had been working 24 hours a day, sleeping on the taxi at times and going back to the Mainland on other occasions.  

10.The Summary of Facts revealed that the Defendant’s taxi was searched in the small hours of 1 April 2018.  When testified, the Defendant stated that he had returned from the Mainland sometime after 10:00 pm the previous night and had not started work when he was spotted on board his taxi. 

11.The Defendant claimed that the cash in question was his savings over a long period of time and there was also the money he got from running the taxi.  He had carried it with him all along, even when he crossed the border, and he would use part of the cash to pay the taxi rent and the fuel.  However, he had not counted the money.  The Defendant maintained that he was not in the habit of putting money in a bank as it was inconvenient to do so. 

12.When asked by his counsel, the Defendant admitted that part of the money, about several thousands, was from the sale of drugs but he did not count how much.  The Defendant further explained that there was a larger sum with him at the time of seizure because it was the beginning of the month and he had to pay the taxi rent. 

13.Under cross-examination, the Defendant admitted that before engaging in drug trafficking, he had no money left and no money was kept in the taxi.  When asked about a notebook found in the taxi with suspected drug transaction records, the Defendant initially claimed that those were passenger records.  He later said they were soccer bets.

Consideration

14.Having considered the evidence adduced and the materials before me, I completely reject the Defendant’s claim that the cash was mainly his savings over a long period of time. 

15.As admitted by the Defendant, he had got no money left with him before he engaged in drug trafficking. This shows that he was very poor financially.  Given his limited means, I do not believe that he would have with him savings of about HK$36,000 unrelated to drug trafficking when he was arrested.  The claim that he had all along carried with him his life-time savings, whether in Hong Kong or in the Mainland, also defies common sense and is not at all believable.  

16.I also note that the majority of the cash comprises rather new HK$500 banknotes.  If it were the Defendant’s savings over a long period of time and if the Defendant was not in the habit of going to banks, one would expect the cash to be made up of various denominations and banknotes in different degrees of wear and tear.  The Defendant’s claim simply does not fit with the cash seized. 

17.In the course of submissions, Mr Boyton suggested that some of the cash might well be legitimate money and such a possibility could not be ruled out.  This, in my view, is not quite the issue.  The onus is on the Defendant to show on a balance of probabilities that the discretion should be exercised in his favour for the return of the money.  In this case, as I have explained above, the Defendant is unable to discharge that burden and I do not consider it appropriate to order the return of any of the cash seized. 

Conclusion

18.I order that exhibits P31 to P35, that is, cash in the total sum of HK$35,940.1 be forfeited. 

Mr Bobby Cheung, SPP of the Department of Justice, for HKSAR

Mr David Boyton, instructed by Y K Lau & Chu, for the Defendant